A good primer on why downsizing cases are difficult to win under the Age Discrimination in Employment Act

Another case from the Second Circuit reinforces how difficult it is to win an employment discrimination case, particularly when the plaintiff is fired due to corporate restructuring motivated by financial distress.

The case is Tillman v. Gernadier Realty Corp., a summary order issued on October 15. Plaintiff worked for this property management corporation where she held several roles relating to energy conservation. She claims she was fired after 40 years of employment due to her age.

The case does not survive summary judgment, however. One of defendant's largest clients was Starrett City a housing development in Brooklyn and defendant's most profitable contract. Much of plaintiff's work was devoted to Starrett City, and that contract contributed to more than one-third of defendant's revenue. The loss of that contract was a huge blow to plaintiff's employer. You are probably thinking this is a standard downsizing case, where management has to let people go to stay afloat financially, but the twist is that defendant first told plaintiff that she would remain in her position despite the organizational restructuring, as she had potential to contribute to other energy projects. But they fired her anyway.

The case fails, the Court of Appeals (Wesley, Bianco and Robinson) holds, because a consulting firm that management retained to evaluate its options recommended a comprehensive restructuring of the department overseen by plaintiff; this led to a new position for plaintiff. But the restructuring continued in the months that followed and the company pursued more cost-saving options, including outsourcing. After plaintiff rejected an outsourcing option that would have paid her $3,000 per month, she was terminated, and her duties were undertaken by third-party consultants. 

The Second Circuit says plaintiff cannot overcome this evidence that she was terminated for age-neutral reasons. She does point out that management asked her at one point how much longer she planned to work. But that is not evidence of age discrimination under Rankin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997). Asking questions about an employee's retirement plans does not violate the civil rights laws. That principle will remain with us forever, and it allows management to broach the subject without fear of being sued, unless management does so in an obnoxious and discriminatory manner. But merely asking an older worker about her retirement plans is not enough to prove age discrimination. While the Court does not cite this principle, it is also true that firing older workers to save money id not always proof that management was practicing age discrimination. And, while plaintiff argued that she was demoted and had to work under a much younger supervisor with a lower title in a department that did not "make sense," the Court returns to the company's need to restructure the company to save money. Nor is the Court of Appeals persuaded by plaintiff's statistical evidence that the company had a pattern of firing older employees